In which I cut & paste my disorganized thoughts on American presidential power from another blog

From over at Phronesisaical, and following on fruitfull blatherings inflicted on others elsewhere previously.

15 Comments

Murky Thoughts said...

I'm going to go out on a limb here and say the DoJ has it right. The missing ingredients are that executive needs to strive hard to work within the laws, report to Congress what he or she is up to in a timely fashion, and that Congress can impeach him or her for breaking a law without good reason. It's too bad that we have to trust the executive, just like it's too bad we have to trust a baby sitter, but that's life. Just for withholding information and misleading Congress this particular president made himself extremely worthy of impeachment long ago.

4:57 PM
Murky Thoughts said...

This is what I see as the constitutionally prescribed mechanism of government of the United States on the first and foremost cycle of checking and balancing:

1) The legislature listens to the people, looks to the future, and writes laws to achieve desired ends.
2) The executive executes those laws and watches what happens
3) The judicial branch detects and corrects failures of the laws to function as intended.

Note the sequence is the same as for the content of Articles 1-3.

On top of that, there are secondary interelations of the parts that are implied by this division of duties and by the provision of impeachment. Because it's the executive through its services that is watching the road where the legal rubber meets it, the executive is the first to know what's happening, such as when results deviate from legislative expectation. Because the executive is autocratic and non-deliberative, furthermore, it can act fast to improvise a fix, which may be merely efficient but may be a matter of life and death for the nation, depending what weirdness arises. But then because the Constitution obliges the Executive to report to Congress, and because it empowers but does not oblige Congress to impeach presidents whensoever it sees fit, therefore it provides a mechanism by which Congress is able to check an executive that exhibits poor skills of improvisation and/or poor intuition for what members of the legislature collectively would consider reasonable under the unanticipated circumstances the executive reports. There's also censure. Sure it's crude, but like with a baby sitter it's the best a people can do. The Executive is off managing affairs as our agent and there is no choice but to rely on it. At least not without dividing responsibilities in a different way than the Constitution seems to have prescribed. That's why it sucks so badly to have a misguided buffoon for a president.

6:45 PM
Murky Thoughts said...

I left out the spin cycle, which is where the people hear what the government is doing.

6:48 PM
helmut said...

I suppose you're right, MT, in the first comment. But is that what the case is about? Limiting the power of the executive? That may be the argument there, but "power of the executive" and law-breaking are still different things. This Congress has surely ceded power to the executive by abjuring its own role - such as in the leadup to the Iraq War. I guess that for the impeachment of "buffoon president," Congress, in fact, would have to take its duties more seriously. But isn't the FISA case one in which its not merely a matter of the executive limiting its own power, but one in which the underlying claim is that laws in general are a limitation of the power of the executive? Then, given that we're supposed to be in a special - even historically unique - situation, said laws are irrelevant? Isn't that not only mildly autocratic, in your terms, but dictatorial?

11:17 AM
Murky Thoughts said...

A dictator is not accountable, but like a meter maid a president is accountable. Besides the pending election and term limits, there's impeachment. My position is that impeachment is underutilized with respect to the logic of the constitution. I came to my position about Chief Executives being free to break the law (one I would not have thought my lefty self ever likely to entertain) by 1) hypothesizing an imminent unanticipated threat to constitutional nationhood, which clearly the Commander in Chief by oath and constitutional provision is obliged to defend against, 2) noticing that Article II says nowhere that a President may not break laws that Congress enacts to restrict his or her powers, 3) realizing that while the Constitution as a document cleanly separates Article I, II and III, the institutions it provides for nevertheless may overlap in the duties and the actions that the text calls on them to take (thinking otherwise I suspect is a popular pitfall ala cognitive dissonance), 4) realizing that any national government is going to be armed and dangerous and 5) realizing that it fit with my lifelong hearsay knowledge of what the founding fathers had in mind in creating "checks and balances" to conceive the three branches each as armed and dangerous not only to us but to each other, such that seemingly they chose checking and balancing as an alternative to limiting the power of the government, which 6) just stands to reason (Mr. Patrick Henry, would you rather your president step outside some legal bounds that yesterday's Congress prescribed or would you rather let that ticking thermonuclear device explode in your Manhattan garage?). Sure, we could call the ticking time bomb and the unanticipated imminent national threat "special cases," but Occam's razor and the very principle of Constitutional government urges me to squint my eyes and at least look to see whether the Constitution provides instructions for such cases, and it's looking like no stretch at all to me to say it does and in the way I've described. Not to mention and "unanticipated imminent national threat" surely is something even an ancient forefather would have thought of. National catastrophes unfolded more slowly in the pre-thermonuclear, pre-electronic age, but nations have been and will always be susceptible to them, and people have been an will always theorize and anticipate and feel obliged to act in interest of those their sworn to protect.

12:43 PM
helmut said...

I'm not sure I'd disagree. But there's an important element that also has to be present and that is precisely the threat to nationhood itself. This president has proved that he is not to be trusted. That seems to me pretty good reason for saying that the so-called exceptional cases have to have some kind of independent scrutiny.

What's sinister about the present case is that there's good reason to think the terror threat is not as grave as it's made out to be, and that making it out to be a greater threat than it is serves particular interests which are, by definition, not national interests.

5:34 PM
Murky Thoughts said...

I guess that makes me the radical. To me, a president who has proved he or she is not to be trusted must be impeached. Forget diddling with details and pull the sleaze ball out of there. To do otherwise is to succumb to realpolitik and abandon constitutional principles. Sucks though, cuz I also believe in being practical.

6:21 PM
Murky Thoughts said...

Re: threats to nationhood, the catch-22 is that nobody is better positioned to perceive a threat to nationhood than the executive, and reporting threats to the legislature in plenary tips off the threateners and may cost the executive a chance to thwart them. Ergo we have to just trust the executive when the executive says we just have to trust him or her. It's a fudge and a compromise when the executive reports to secret committees that represent only a subset of senators. That fudge neither wholly eliminates reliance on trust (though it shifts some of the reliance to representatives not on the special committee who have to trust those off it) nor works for every kind of threat.

6:34 PM
helmut said...

I'll gladly go with impeachment. The bind seems to me that a further empowered executive can override any impeachment/censure move by claiming that it knows things no one else knows and those things are grave threats to national security. Isn't there a way, then, that the claim to executive power we see in the present case will simply override ALL accountability, including the possibility of censure/impeachment?

8:15 PM
Murky Thoughts said...

Congress can't constitutionally impeach a president for "high crimes and misdemeanors" that it knows nothing about, so that's sort of a catch (members of Congress could always conspire to all tell the citizenry, despite the absence of a high crime etc, that a supersensitively secret high crime occurred that it's too dangerous for the people to know about; or they could conspire to impeach on a low crime and all claim it looked high to them). We're protected somewhat by tending to elect as president dandies who have to order others to do their dirty work and an ethos that plays against totalitarianism even within inner circles and so leads to the Mark Felts and NSA leakers of the world to spill beans about executive egregiousnesses. I suppose we wouldn't have to rely so much as we have until now on leakers and the media and the power of scandal if the Executive saw Congress as posing a credible threat of impeachment, because they could use that threat to demand more transparency and reporting, keeping the Executive on a shorter leash as it were. I suppose Congress could create staffer spies to act as mole operatives within the White House to report back what it's up to. I'm sure that goes on de facto informally. Anyway, your scenario of a "move to impeach" a president can't be overridden by a president that Congress doesn't trust. The scenario presumably involves the commission of a high crime about which the president says "Trust me, I had a good reason." The Constitution doesn't at all require Congress to trust that president. In fact, I doubt a president would dare try such a line. More like "Just trust me enough to wait a few months before I explain why this high crime I committed was necessary...you know impeachments are a hassle...just a few more months and it will all be clear." Bluff and negotiation and curry and favor is what I imagine it's bound to come down to. Ah, politics.

9:21 PM

Murky Thoughts said...

And if by some miracle of honest journalism we learn that the Executive has committed high crimes for which there has been no impeachment, and we don't trust our Congressional representatives to have insisted on justification, then we yank Congress members out of office at the next election. Assuming we're not too busy watching Desperate Housewives or getting our news from Fox. All in all, I great system. That's what makes me a patriot.

9:58 PM

Murky Thoughts said...

"they could conspire to impeach on a low crime and all claim it looked high to them"

e.g. the Republicans and Clinton

10:04 PM

helmut said...

I'm not so sure we even know what "high crimes" are any more.

10:35 PM
Murky Thoughts said...

Been down so long. Amen, brother.